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Plaintiff Was Unable to Pinpoint the Cause of Her Fall—“Feigned Issue” Raised In an Affidavit Could Not Stave Off Summary Judgment

The Second Department determined plaintiff’s inability to identify the cause of her fall was fatal to the lawsuit:

“A plaintiff’s inability to identify the cause of her fall is fatal to a claim of negligence in a slip-and-fall case because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation” … . Here, the the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff could not identify the cause of her fall without resorting to speculation … . In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s affidavit submitted in opposition to the motion, in which she identified the cause of her fall as “water or cleaning liquid that was on the floor,” merely raised what clearly appears to be a feigned issue of fact designed to avoid the consequences of her earlier deposition testimony … . Trapani v Yonkers Racing Corp, 2015 NY Slip Op 00357, 2nd Dept 1-14-15

 

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